REACH: Enforcement to focus on restrictions in 2016

Announcement by the ECHA on intensified market surveillance with regard to certain substance restrictions.

Within the scope of the REF-4 enforcement project, the adherence to substance restrictions in particular is to be subject to intensified review in 2016. The European Chemicals Agency (ECHA) has already said that 14 selected restriction entries in Annex XVII of the REACH regulation are to be examined as a priority:

The restriction entries selected also concern the use of the listed substances in consumer products.

Restrictions in Annex XVII of REACH often prove to be problematic in practice as the regulation does not set out any separate duties to provide information in the supply chain on any restrictions. Especially in multi-level supply relationships, the parties affected have to rely on separate agreements (often in the form of ‘restricted substances lists’ as a supplement to purchasing terms or quality assurance agreements) to guarantee the marketability of potentially affected products. As recent experience shows, the supplementary guidance from the ECHA on the interpretation of individual restrictions must always be observed here as well. Although these are not legally binding, they are nevertheless taken into account by the national enforcement agencies as relevant guidelines.

Furthermore, contractual safeguarding alone is not normally sufficient to reliably avoid sanctions. Breaches of restrictions in Germany are not merely sanctioned as misdemeanours, but are treated as criminal offences. To exclude any criminal responsibility, affected companies should thus already take into account any relevant restrictions during the procurement of raw materials or supplier parts and guarantee compliance with the legal regulations through adequate controls and internal quality assurance processes. Otherwise there could well be considerable risks under criminal law especially for the managerial team in charge, particularly in view of the imminent enforcement in the coming year.